Guest Post: Obama Got it Right on Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.]

On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains. Echoing statements that have been previously made by a number of his advisers he challenged the continuing claims that drones are inaccurate, counterproductive and continue to cause increasing numbers of civilian casualties. He also officially provided some new information on oversight and the approval process, although much of this information is found in Klaidman’s “Kill or Capture”.

Although there have been exchanges here at OJ as much as a year ago in which there seemed to be a consensus on all sides that drones were not causing disproportionate or excessive civilian casualties when compared to other tools of warfare, that issue still appears to be the primary criticism of drones. You have to look no further than yesterday’s New York Times to see an editorial that claims that drones continue to cause increasing civilian casualties.

As a result it was important for Obama to outline the alternatives to the continued use of drones in places where the local government is unable or unwilling to counter a terror threat to the US. As I pointed out in the LA Times in February the alternatives are special forces, manned aircraft strikes and cruise missiles, invasion or turning over the matter to law enforcement. It is important to remember that “law enforcement” in these contexts is the Pakistani or the Yemeni Army. In the past, attempts by the Pakistani Army to regain control of areas of FATA have been humanitarian disasters. The Swat Valley campaign in 2009 displaced over a million civilians when the Pakistani Army used artillery, armor and airstrikes to go after ~5,000 Taliban/al Qaeda fighters. Last year rumors of a new Pakistani Army offensive in Waziristan sent thousands of civilians fleeing the area even though no offensive took place.

The other options, night raids by special forces, manned aircraft or cruise missile strikes or a full scale invasion by ground troops, would all cause more displacement and disruption of the local civilian population than drones do. It is important to emphasize, as Obama did yesterday, that drones are the best alternative, not only for American servicemen whose lives will be saved, but also for the local civilians on the ground.

The clearest evidence supporting the contention that drones are now the best option in the ungoverned areas of Yemen and Pakistan are the three websites that have attempted to aggregate the casualties caused by drones. The three sites are the New America Foundation, the Long War Journal, and The Bureau of Investigative Journalism (TBIJ). Of these, the TBIJ site has generally reported the highest number of civilian casualties in both Yemen and Pakistan. While none of these sites can be completely accurate in assessing casualties in regions that are beyond the control of the central governments in Sana’a and Islamabad, even TBIJ estimates confirm Obama’s claim that drones should be the weapon of choice in these areas.

According to TBIJ, since January 2012 there have been 60 drone strikes in Pakistan which TBIJ estimates to have killed a minimum of 283 people. Of these casualties TBIJ estimates that 7 were civilians. While any civilian deaths are a tragedy, a civilian casualty rate of less than 2.5% is remarkably low particularly in a conflict in which the enemy hides amongst the civilian population. Although cumulatively over the nine years in which drones have been used in Pakistan TBIJ estimates the overall civilian casualty rate to be slightly under 20% (the casualty rate far more commonly discussed), changes in targeting practices over the last couple of years have greatly reduced these numbers. By emphasizing vehicle strikes and reducing strikes on compounds, and by ensuring a greater degree of redundancy in target observation during strikes, both the CIA and the military have lowered civilian casualties to levels never before seen in warfare.

The other frequent misconception about drone strikes that the speech laid to rest is that the shroud of secrecy that was placed over the drone program for so long meant that the program was not subjected to meaningful oversight. However, Obama made it clear that every drone strike outside of Afghanistan and Iraq, whether conducted by the military or the CIA, was briefed to the appropriate Congressional oversight committees. Every single strike. In addition, testimony before the Senate Armed Services Committee last week confirmed that within the executive branch every drone strike outside Iraq and Afghanistan received approval by the Secretary of Defense after consultation with the JCS and other senior civilian authorities. This high executive approval level coupled with the extraordinary number of Congressional briefings makes any claim that the program was not subject to sufficient oversight unsustainable. Whether that oversight results in accountability for errors is another matter, and one for which there is far less clarity.

This leads to a final point that continues to be the source of debate on OJ. Is there an armed conflict and does IHL apply outside of “hot” battlefields? Obama’s speech confirmed the US position that it is involved in an armed conflict with “al Qaeda and associated forces”. Reacting to the SASC hearings last week Gary Brown of the ICRC pointed out that the campaign outside of “hot” battlefields is not being conducted like any other “war” we have fought. Taking every strike to the NCA-level for approval is not the way warfare is conducted, which points to this conflict being something less than warfare.

While it may be something less than warfare, it is also clearly something more than law enforcement. And unfortunately there is a binary choice between human rights law and IHL. Even with the “human rights law continues in the background even during armed conflict” position that many human rights lawyers take, there are situations in which only one model can be operative. Status-based targeting defines IHL and is antithetical to human right law. May status-based targeting continue against members of AQAP, etc. who are not engaged in immediately threatening behavior at the time a drone finds them? In answering this question affirmatively the US is taking the position that it is involved in a more restricted form of warfare rather than a more robust form of law enforcement.

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